I. Introduction

This report provides an example of the nonbinding use of foreign law in domestic court decisions—more specifically, the recent vote issued in a Federal Supreme Court (Supremo Tribunal Federal) decision of April 30, 2009, by Justice Gilmar Mendes, in a case involving an allegation of disobedience of a fundamental precept (Arguição de Descumprimento de Preceito Fundamental). The report briefly summarizes the Brazilian legal system, provides details regarding the case decided by the Supreme Court, and offers a few excerpts of Justice Mendes’s use of foreign law as a comparative element in his vote.

II. Legal System

Brazil is a civil law country and its legal system, which has its origin in Roman law, was implemented by the Portuguese during the colonization period and lasted until the promulgation of the first Civil Code in 1917.[1] As a civil law country, its legal system is based on codes and legislation enacted primarily by the federal legislature, as well as the states and municipalities. It is a federative republic formed by the insoluble union of the states, municipalities, and Federal District.[2] The Constitution of 1988 establishes the legislature, executive, and judiciary as the three branches that compose the Brazilian government.[3]

The Federal Supreme Court is the highest court in Brazil and is entrusted with the duty of safeguarding the Constitution,[4] as well as functioning as a court of review. The Federal Supreme Court also has original jurisdiction to try and decide direct actions of unconstitutionality (Ação Direta de Inconstitucionalidade) of a federal or state law or normative act, or declaratory actions of constitutionality (Ação Declaratória de Constitucionalidade) of a federal law or normative act,[5] which somewhat resemble the issuance of advisory opinions—a situation not allowed in the Supreme Court of the United States.

Brazil does not follow the doctrine of stare decisis,[6] and the Supreme Court started issuing binding decisions (Súmulas Vinculantes) in special situations[7] only recently, after the amendment of the Brazilian Constitution in 2004.[8]

III. Supreme Court Case

On April 30, 2009, the Supreme Court issued a decision in a case brought to the Court by the political party PDT (Partido Democrático Trabalhista),[9] arguing that Law No. 5,250 of February 9, 1967 (Press Law), disobeyed a fundamental precept (Arguição de Descumprimento de Preceito Fundamental).[10] PDT argued that Law No. 5,250 of 1967 was not in accordance with the Constitution of 1988 and asked the Supreme Court to acknowledge the legal nullity of Law No. 5,250, since it was incompatible with the democratic era.

A. Justice Gilmar Mendes’s Vote

In his vote, Justice Mendes made ample use of foreign law to analyze the meaning of freedom of the press in a democratic constitutional state. Justice Mendes began his analysis by citing Article 12 of the Virginia Bill of Rights, which says “[t]hat the freedom of the press is one of the great bulwarks of liberty and can never be restrained but by despotic governments.”[11]

Justice Mendes observed that the discussion gravitates towards arguments for absolute freedom or complete censorship and that for the past centuries the press developed itself in an unstoppable fight towards absolute freedom.[12] He continued by saying:

[T]he great majority of constitutional texts, since the first declaration of rights, expressly proclaim the freedom of the press as a value almost absolute, not subject to restrictions from the government or even the Parliament, in the form of law.[[13]]

In this regard, Justice Mendes cited the previously mentioned Article 12 of the Virginia Bill of Rights and other state constitutional texts that originated during the emancipation process of the British Colonies in North America, namely, New Hampshire, Article XII; South Carolina, Article XLIII; Delaware, Article 1(5); Pennsylvania, Article XII; Maryland, Article XXXVIII; Georgia, Article IV(3); and Massachusetts, Article XVI, as examples that decisively influenced the First Amendment to the Constitution of the United States.[14]

Justice Mendes observed that the first Brazilian Constitutions expressly foresaw the possibility of laws restricting the freedom of the press, and noted that Article 220 of the Constitution of 1988 adopted a position very similar to the classical liberal model of ensuring freedom of the press, providing:

Article 220 – The expression of thoughts, creation, speech, and information, through whatever form, process, or vehicle, shall not be subject to any restrictions, observing the provisions of this Constitution.[[15]]

Justice Mendes noted that “in the permanent debate between absolute freedom and restricted freedom, the jurisprudence of the Courts produced two ideas about the meaning or the content of freedom of the press.”[16]

In the United States, said Justice Mendes, “two traditions or two models of interpretation of the First Amendment were formed.”[17] The first, a liberal concept, emphasizes the good operation of the “market of ideas” and traces back to the dissenting vote of Oliver Wendell Holmes in the famous Abrams case;[18] and the second, a civic or republican concept, highlights the importance of the public and democratic debate that, besides the foundation launched by James Madison, was reflected in the opinion of Louis D. Brandeis in the case of Whitney v. California, culminating in the landmark decision in New York Times Co. v. Sullivan.[19]

In Germany, Justice Mendes said, the Constitutional Federal Tribunal (Bundesverfassungsgericht), through a continuing line of jurisprudence with its origin in the famous Lüthcase, built the concept of the double dimension, double character, or double face of fundamental rights, emphasizing on the one hand the subjective and individual aspect, and on the other hand the objective notion of the institutional character of freedom of expression and the press.[20] Justice Mendes observed that the Lüth case “is a benchmark in the definition of the meaning of freedom of expression in a democracy” and that “the German tribunal recognized the double dimension, subjective (individual) and objective (institutional), of the fundamental rights.”[21]

Additional German cases were cited by Justice Mendes. He mentioned that the objective or institutional dimension of the fundamental right to freedom of the press was affirmed in the famous Spiegel case[22] and that in other important cases the German tribunal reaffirmed the objective or institutional aspect of freedom of the press.[23]

Throughout his vote, Justice Mendes continued to make extensive use of foreign law to help in the analysis of whether or not Law No. 5,250 of 1967 disobeyed a fundamental precept and should be declared void. For the sake of a comparative analysis, Justice Mendes further researched press law in several other countries. In this regard he wrote in his vote, “In Spain, the legal milestone in the area is found in Article 20 of the Spanish Constitution, which expressly prohibits previous censorship and widely recognizes freedom of expression, observing the limitations imposed by the right to honor, intimacy, one’s image, and the protection of childhood and youth.”[24] Justice Mendes also observed that in Spain the right of reply can be found in Ley Orgánica No. 2/1984.[25]

Continuing with his survey of the press laws of other countries, he noted that in Portugal, Articles 37 and 38 of the Constitution of 1976 guaranteed the end of censorship and the independence of the organs of social communication. In addition, the Press Law of 1999, as modified by Law No. 18/2003, defines “press” and establishes its distinct classifications.[26] The right of reply is also present in Articles 24, 25, 26 and 27 of Portugal’s Law No. 18/2003.[27]

Freedom of expression in the United Kingdom, Justice Mendes said, is found in Article 12 of the Human Rights Act of 1998,[28] and the right of reply is found in the Defamation Act of 1996.[29] In France, “the Declaration of the Rights of Man and of the Citizen of 1789 establishes in its Article 11 that the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom.”[30] Furthermore, Justice Mendes indicated that the French law regarding freedom of the press is from 1881 (Loi du 29 juillet 1881 sur la liberté de la presse) and that freedom of expression is restricted in many situations: for the protection of family intimacy (art. 39); minors (art. 39 bis); and the image of persons who are victims of violence (art. 39 quinquies).[31]

Justice Mendes also researched the right of reply in Chile,[32] Peru,[33] Uruguay[34] and Germany.[35] After analyzing it, he stated that it “constitutes a fundamental guarantee,”[36] and that:

The right of reply is present in the great majority of democratic countries that safeguard freedom of the press—derecho de replica (Spain); droit de réponse e droit de rectification (France); diritto di rettifica (Italy); Gegendarstellunsrecht and Entgegnungsrecht (Germany)—and it is assured to those persons or companies, public or private, that suffer an offense as the result of erroneous or untrue information (news) transmitted through the press. It is a guarantee of reply, rectification, correction, clarification, defense, or refutation of the erroneous or untrue information, proportional to the injury suffered, by the same means of communication.[[37]]

According to Justice Mendes, the right of reply, assured by Article 5(V) of the Brazilian Constitution of 1988, is foreseen by the American Convention on Human Rights in the following terms:[38]

Anyone injured by inaccurate or offensive statements or ideas disseminated to the public in general by a legally regulated medium of communication has the right to reply or to make a correction using the same communications outlet, under such conditions as the law may establish.[[39]]

Justice Mendes continued his analysis by writing that “the right of reply is constitutionally assured, but requires norms of organization and procedure to make its effective exercise possible,” and that “there is no doubt that the adequate regulation of the right of reply is one of the central themes of the Press Law.”[40]

In addition, Justice Mendes observed that:

There are, in the Brazilian law, minimum norms of organization and procedure for the exercise of the right of reply. If these norms are declared as not received by the Constitution of 1988, certainly a scenario of extreme legal uncertainty will be established, which would affect all citizens and means of communication, and that minimum rules for the exercise of the right of reply are, undoubtedly, also a guarantee of legal security for the means of communication.[[41]]

After Justice Mendes’s thorough analysis, he concluded by saying that Law No. 5,250 of 1967 should be declared void in part, and that Chapter IV, Articles 29 to 36, which regulate the right of reply, should be maintained.[42]

B. The Supreme Court’s Decision

After all the legal procedures were followed, all the interested parties (including government offices and officers) participated in the case, and all the Justices had voted, the Supreme Court declared in a 7-to-4 decision issued on April 30, 2009, that the whole Law No. 5,250 was not recognized by the Constitution of 1988.

[6] “The doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.” Black’s Law Dictionary 1443 (8th ed. 2004).